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--------------- Print Magazine --------------
  May 2016
  April 2016
Legal Article



Justice Rajindar Sachar
Chief Justice (Retd.), High Court of Delhi

The hanging of Kasab, the lone survivor of 26 th November, 2008 terrorist gang has raised a number of questions. The foremost being of refusal of India to abolition of death penalty, notwithstanding that Gandhiji, Jai Prakash Narayan and Dr. Ambedkar were opposed to it. I respectfully follow them. The secret hanging also seems unexplainable in view of sudden realization by the Home Minister Shinde of the urgency and public advocacy of rethink on Capital Punishment.

That Kasab was involved in Terror attack was an open and shut case. He had a fair trial with one of the Senior Advocates of the Supreme Court being provided free by the State, and it would be slander to suggest to the contrary. But there are other aspects which show a disturbing trend. I am not referring to unusual speed with which his mercy petition has been disposed of, but more in the manner the Home Ministry acted. The press reports quote two officials who claim to have been present giving contrary views, one saying that he was remembering Allah and expressed his desire to see his mother and the other official saying that Kasab was sort of dazed and did not say anything. All this could have been avoided if lawyers of Kasab in the trial court and High Court had been allowed to be present. I would even say that a couple of Indian Press people should have been allowed which could have scotched any rumour mongering. Above all, genuine effort by our government should have been made to bring over Kasab's mother to meet him in his last moment - a really human gesture. It would also have complied with requirement of law and shown humanitarian considerations.

It is settled practice that before hanging the family members are given an opportunity to meet the accused. The Indian Government claims that it told the Pakistan Government the evening before the execution date about Kasab's request to meet his mother, but Pak Government refused to receive this information. I find no justification why Indian Government itself did not pass this information to Pakistan Press - it needs to be remembered that in the first instance it was Pakistan Press which traced the parents and the residence of Kasab in Pakistan. Even Pak Government does not dispute that Kasab and his co-terrorists (who were all killed in the encounter) were from Pakistan, it only wants to absolve itself from the charge of I.S.I. involvement - in fact that is the crucial reason why Kasab should not have been hung and kept as a continuous illustration of Pak involvement (whether official or non official). A living Kasab, realizing that Pakistan was repudiating him, might have disclosed more inside information. As it is, the trial that is being held in Pakistan against Hafiz Sayeed and others of their involvement is held up because of the objection by Pak Government wanting to cross examine those witnesses in Indian Trial, a right which according to press reports India is inclined to accept. Why then this gory urgency to hang Kasab who was a live face of terror originating from Pakistan.

Why this tearing hurry? Was it as some people suggest that Home Minister being from Mumbai he wanted to score a personal victory by being able to boast before the public on 26 th November, 2012 (the anniversary of this tragic event) that he has avenged this barbaric act.

If so, one would be sorry if in such important public delicate matters, small personal considerations prevail.

Another boast by Home Minister that even Sonia Gandhi or the Prime Minister did not know before hand of hanging - not telling Sonia Gandhi is understandable, because she is not in the government (though I would have thought that it would have been wiser to seek her advice, considering that she had shown admirable humanism and lack of revenge sentiment, when even in opposition she had recommended clemency, to Nalini one of the accused in Rajiv Gandhi murder case). But to have kept this information away from the Prime Minister is certainly indefensible under our Constitution. The Prime Minister is the head and to keep him ignorant of this position where India-Pakistan relations are concerned cannot be considered a correct step.

I feel that this tearing hurry and encouragement even by the press to show that people were celebrating ill befits our civilized culture and even responsible persons like Anna Hazare and the well known Director of Films regretting as to why Kasab had not been hung publically or even been allowed to be publically lynched. I am shocked; one would have expected from such personages a more mature, civilized reaction. As against this the reaction of father of one of the deceased that hanging is not a cause of celebration makes me salute his humanism.

Kasab had stubbornly kept silent till now. But now knowing that all legal remedies are finished, he might have become less resistant to revealing all the details. After all the voice samples have got to be matched. That is why I think that government has played foolishly in hurrying through with hanging. The government has missed the opportunity to embarrass Pakistans. As it is, responsible opinion and Press in Pakistan like "Dawn" Newspaper soundly criticized Pakistan Government when it wrote "the authorities in Islamabad acted to establish facts that distanced the State from the work of a few fanatic killers. But that doesn't serve to hide the shortcomings in the working of Pakistan's anti-terrorism apparatus and its inability to keep tabs on organizations."

"Express - Tribune" of Pakistan echoed the same sentiment thus "we must show the world that as a country, we are genuinely committed to fighting terrorism. For this reason, the process of trying the accused in our country must be expedited... at the top of the list of those accused by the Indian government in the Mumbai attacks is leader of the Jamaat-ud-Dawa, Hafiz Muhammad Saeed..New Delhi has provided evidence to our government of involvement of Pakistani individuals in the 2008 attacks but Islamabad denies substantive proof. Such misconceptions need to be determinedly resolved if militancy is to be brought down in the country."

Now that Kasab has been hanged will the Home Minister give concrete shape to his publicly expressed view by bringing a law abolishing death penalty, because as he himself admits that death penalty is a violation of human rights.

(Print Version)
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